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magnatune.com licensing

I looked at the non-commercial licensing that magnatune.com offers and
found an interesting bit in there.

First of all, they use CC-BY-NC-SA-1.0 which has already that "any
technological measures that control access" clause which alone makes
all the CC licenses too unpleasant to really consider for inclusion in
Debian.  But for the discussion's sake, let's disregard that and the
other lawyerbombs in there for the moment and focus on the NC part.

Here's what the license says about NC:
You may not exercise any of the rights granted to You in Section 3
above in any manner that is primarily intended for or directed toward
commercial advantage or private monetary compensation. The exchange of
the Work for other copyrighted works by means of digital file-sharing
or otherwise shall not be considered to be intended for or directed
toward commercial advantage or private monetary compensation, provided
there is no payment of any monetary compensation in connection with
the exchange of copyrighted works.

However, if you try to download the music and choose Non-Commercial
license on magnatune's download page they state (at

Common examples of uses we consider non-commercial are:
GNU/Berkeley/OSI licensed games or software that are given away for
free (or included incidentally inside a larger distribution, even in a

Would this suffice to override what the license says about NC use?
If so, it would seem that this would satisfy DFSG1.

I'm still unsure whether it would run afoul of DFSG6 or DFSG9.  If you
were to take the music out of the game and distribute it alone, the NC
part would certainly kick in.  Also, it places a restriction on that
that it is included with a open source game, but it doesn't care
beyond that about what software it is included with.

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